Should Drug Testing Labs Be Liable For Faulty Results?

Drug chemist Michael Hitchcock of Alabama examines a substance to see if it is cocaine. New York's highest court ruled last week that drug labs are liable for damages caused by false positive drug tests. (AP)

A false positive result in a drug test is more than just a little mistake — it's often the difference between walking free or going to prison. Now, New Yorkers can sue drug testing laboratories for damages caused by incorrect results.

A ruling last week by New York's highest court, the Court of Appeals, opens the door to civil liability for drug testing companies, which play an essential role in the criminal justice system but have been largely unaccountable for their test results.

State supreme courts in Pennsylvania and Kansas have also recognized civil liability for drug labs specifically in cases where a false positive drug test cost someone a job after it looked like the applicant flunked a drug test.

In the New York ruling, the court majority stressed that the consequences of a false positive drug test are “potentially life-altering.” Even though the drug lab company was just a contractor for the county probation department, the court said the lab still had a duty to perform the drug test to the highest professional standards, which it did not.

Eric Landon, a former funeral director, asked the court for the right to sue Kroll Laboratories, a Louisiana-based private drug testing lab which performed drug tests for the Orange County Probation Department, just north of New York City.

Landon, legally representing himself, told the court that a false positive drug test just weeks before the end of his five-year probation sentence for forgery had cost him a new job, his upcoming marriage and thousands of dollars defending against the drug test results.

Landon discovered that Kroll Laboratories used a lower than recommended threshold for testing for the drug THC in the bloodstream, which made it likely that the results would be false positive. THC is the primary active ingredient in marijuana.

Landon said he wanted to pursue the case against Kroll on behalf of other probationers who may have been “bullied into prison without the wherewithal to challenge their drug tests,” he told the Associated Press.

“Kroll did not exercise reasonable care in the testing of Landon's biological sample,” wrote Chief Judge Jonathan Lippman. “Landon was directly harmed by the positive results causing the extension of his probation and the necessity of having to defend himself in the court proceedings.”

The ruling is another mark against forensic labs. Last year in Massachusetts, investigators discovered that the state crime lab had falsified thousands of drug test results and regularly communicated with the district attorney's office, which heavily influenced the results of many forensic tests.

So far, 330 people have been released from prison based on evidence that the crime lab and negligent chemist Annie Dookhan handled the evidence in their cases. Another 1,100 cases have been dismissed or not prosecuted because of tainted evidence from the state lab. Dookhan is accused of falsifying evidence in as many as 34,000 cases and faces dozens of charges of tampering with evidence, obstruction of justice and perjury. The state has allocated $30 million for expenses related to the scandal.

Two people who had evidence falsified by Dookhan are suing her and the employees of the crime lab and the Suffolk County District Attorney's Office in federal court for wrongful imprisonment. Few state civil claims are being pursued because Massachusetts caps damages for state negligence at $100,000.

New York has no cap on damages. At least 32 other states limit civil damage amounts, according to the National Conference of State Legislatures.

The state crime lab investigation has left many with serious doubts about the quality of forensic evidence.

“Most of the time when you have drug evidence, you don't even want to bring the chemist into the courtroom because they come in with their scientific background and offer seemingly ironclad testimony,” said Joseph Perullo, who is representing Jeffery Solomon in a civil suit in federal court against the state crime lab and its employees.

“But chemists are just as fallible as anyone else, and they don't tell you the background about what's really going on at the lab. This system has to be legitimate and well audited, especially since it affects people's liberty. That was a complete failure in Massachusetts,” Perullo said.

Solomon was arrested for selling counterfeit cocaine, but Dookhan produced test results that showed it was real cocaine. Solomon is arguing that those test results were false and that Dookhan and the Suffolk County District Attorney's office violated his civil rights. The case has not yet had a formal hearing.

In the New York court, the dissenting judges worried about opening up the courts to suits against lab companies from any probationers or employees who want to dispute the results of their mandatory drug tests. This opens the door to lawsuits in areas “too numerous to contemplate,” wrote Judge Eugene Pigott.

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